Challenge West Virginia

November 20, 2018

Challenge West Virginia is a statewide organization of parents, educators and other West Virginians committed to maintaining and improving small community schools. Our goal is to reform education in the Mountain State so that citizens have a voice in policy decisions and every child has the opportunity to receive a first-class education and the promise of a bright future.

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Legal battles related to charter schools are heating up in several states. Late last month the Arizona Court of Appeals found that charter schools are not entitled to the same level of funding as regular public schools. And earlier this month the American Civil Liberties Union (ACLU) and the Community Legal Aid Society, Inc. (CLASI) filed a complaint with the U.S. Department of Education’s Office of Civil Rights alleging, among other claims, that most of Delaware’s charter schools are easily racially identifiable and contribute to the resegregation of regular schools. The complaint also claims that admissions requirements in many charters effectively exclude lower-income students and students with disabilities.

Arizona charters not entitled to more funding

At issue in the Arizona case was whether charter schools have the right to the same level of funding as regular public schools. In this particular school finance case, Craven v. Huppenthal, parents of charter school students claimed that the state’s school funding system was unconstitutional because it caused “gross disparities between charter public schools and other public schools.” The lawsuit also alleged that the funding system violated the state’s equal protection clause.

The court found the funding system constitutional; it also found that charter school students’ equal protection rights were not being violated.

The appellate court based its decision on the constitutional portion of the claim on several factors, establishing first that the state’s charter schools are not subject to the same regulations as regular public schools. Like charters in many other states, Arizona’s charter schools are not required to comply with all state laws related to teacher employment, for example. Arizona’s charters schools have other freedoms not shared with regular schools, like the ability to structure the school around particular subjects or pedagogical styles. In addition, charters are allowed to put into place measures that restrict enrollment.

The court also noted that the different methods for funding regular and charter schools gives charters access to certain funding sources not generally available to regular public schools such as access to start-up funds, ability to accept certain kinds of grants and donations, and some state funding streams.

Importantly, parent testimony that their children were receiving a good education in their charter schools was viewed as evidence that the schools were adequate, the bar previously established by the state Supreme Court as the threshold required by the constitution.

The court applied a different set of considerations to the equal protection claim. It held that attendance at charter schools is voluntary and children could enroll in a regular public school at any time, therefore their rights were not violated.

Delaware charters alleged to be in violation of federal law

The ACLU/CLASI complaint filed with the Office of Civil Rights claims that Delaware’s charter authorizers–the Department of Education and the Red Clay School District–are in violation of both federal civil rights and disability law. The organizations are calling for a range of provisions to bring the state into compliance.

The complaint calls out admissions practices of many charter schools as major factors leading to the exclusion of students with disabilities and the racial resegregation of Delaware schools. These practices are also alleged to create significant hurdles for students from middle and lower income families.

Delaware charter schools may set a variety of admissions requirements, including minimum test scores, fees and other monetary expectations, and stipulations that parents write admissions essays, commit to specific types of participation in school activities, and meet other mandates.

In reference to these requirements, Courtney Bowie of the ACLU’s Racial Justice Progam writes on the home page of the ACLU of Delaware: “They [charter schools] get to choose which students can attend, rather than giving parents a true choice.”

More than 75% of Delaware’s charter schools are racially identifiable, according to the complaint.

The ACLU and CLASI call for the following remedies:

A moratorium on the authorization and opening of new charter schools until an effective desegregation plan has been implemented;

Utilization of a random opt-out lottery for charter school admissions;

Assurance that the cost of attending a public charter school is free and that parents are not required or pressured to purchase uniforms or raise money for the school;

Capping class size in traditional public schools at the same level as charter schools and ensuring that total funding for traditional public schools is equal to that of charter schools;

Providing additional funding to schools with a disproportionately high number of students of color, students with special needs and low-income students;

A plan to ensure that students with disabilities are recuited and reasonably accommodated in all charter schools.